As a landlord and tenant lawyer, part of my life's work is to “translate” the rules of the law so that non-lawyers can properly understand them.
This is important: ignorance of the law is not (in most cases) a defense to breaking the rules.
But if the laws are confusing and hard to understand, how can you prevent inadvertent violation of the rules?
For example, the Welsh Housing Act
I have spent much of 2021 and 2022 studying the Rental Housing (Wales) Act 2016 ahead of its coming into force in December 2022. It was no easy task, even for someone who is used to reading legislation.
The problem wasn't the actual language, but excessive cross-referencing.
My work computer has three monitors, but I would need about six to properly comply with the law.
Unfair contract terms rules
Since 1994, there has been legislation requiring drafters of consumer contracts to use “plain English.”
Shouldn't our laws have something similar? They apply to all of us, and are therefore more important than contracts.
I suspect that under the plain English rules that became part of the Consumer Rights Act 2015, many laws would be deemed unenforceable.
I've discussed this before on this blog in 2006 and 2010 .
Government Guidance
In recent years, when new legislation is enacted, useful government guidance is provided explaining what the legislation is and how it will be used.
However, while the guidelines have some legal force, they are not necessarily binding on judges. Even if a judge believes the guidelines are wrong, they do not prevent him or her from issuing a dissenting decision.
Naturally, those who followed that advice will be frustrated.
First, wouldn't it be better to make the law clearer?
Making the law clearer
I understand this is not an easy task.
The law needs to be consistent, hence the need for cross-referencing.
It also needs to be phrased in a way that makes your intention clear – often this is thought to be easier if you use language that has been approved by judges in previous cases.
But this is writing law for lawyers, not for ordinary people.
Furthermore, our language is very rich and many words have multiple meanings – this is one of the foundations of our humor – so it would be a challenge to create sentences that have only one meaning in every situation.
But despite all this, surely it should be possible to create laws that are clear, consistent, and understandable to a non-lawyer of average intelligence?
Some suggestions
Definitions are important, but they should be limited to only one part of the law, so that all cross-references go to the same palace. This is often done, but not always. Cross-references should be avoided wherever possible, and only used when absolutely necessary. Only simple words should be used. In short sentences. Incidentally, this is a habit of the late Lord Denning, a great lawyer. A legal memorandum should be written for lawyers that makes it clear how the law is to be interpreted. It should also have the force of law. Laws should be stress-tested by a panel drawn from the public, who are asked to comment on draft bills. Maybe they could answer a multiple-choice survey with different interpretations of the wording to see how many people picked the right answer. Finally, most laws are followed by secondary “statutory instruments”, which explain in more detail how the “top level” legislation is intended to work. However, they are not always easy to find. Can a government legislation site provide a list of all the statutory instruments that relate to it, in addition to the main legislation? This would make it easier for people to find the details they need.
Why is this important?
Given the difficult challenges facing this new Labour government, this petition may seem of little relevance to many.
But many of these problems can be solved through legislation. Legislation that is clear and unambiguous is much more effective than legislation that is difficult to understand.
Difficult legislation:
It is likely to take numerous challenges through the courts (potentially taking years) before it is properly understood and, as with the rental deposit rules introduced in the Housing Act 2004, further amendments may be necessary if court decisions go against the government's intentions.
This government will surely want to avoid that.
Is legal clarity a human right?
This new Labour government is a government for ordinary people – people who in most cases cannot afford lawyers to explain the law to them.
Surely the laws that are binding on us all, and that we are all expected to know and obey, should be clear beyond any doubt?